Crouch v. Crouch

• Decision Date: 31 July 1964
• Citation: 385 S.W.2d 288,53 Tenn.App. 594
• Parties: Della Ann CROUCH, Complainant-Appellee, v. W. L. CROUCH, Defendant-Appellant. 53 Tenn.App. 594, 385 S.W.2d 288
• Court: Tennessee Court of Appeals

Page 288

385 S.W.2d 288

Della Ann CROUCH, Complainant-Appellee, v. W. L. CROUCH, Defendant-Appellant.

53 Tenn.App. 594, 385 S.W.2d 288

Court of Appeals of Tennessee, Middle Section, at Nashville.

July 31, 1964.

Certiorari Denied by Supreme Court Dec. 11, 1964.

[53 TENNAPP 596] Bryson & Bryson, Woodbury, W. G. McDonough, McMinnville, for appellant.

Foutch & LeFevre, Smithville, Haston & Haston, McMinnville, for appellee.

CHATTIN, Judge.

This is a divorce suit. The cause was tried before the Honorable Robert S. Brady, Circuit Judge for Warren County, Tennessee, on oral testimony.

During the trial of the case it developed the parties had been previously married prior to their marriage on November 22, 1943. Each had a child by their previous marriages. As a result of their marriage they have one son, Bobby Lee. On the day of their marriage they entered into an antenuptial agreement. The contract had been mutilated by rats. Complainant insisted the agreement provided in the event of a divorce she was to receive one-half of all the property of the defendant over and above the sum of $6,000.00. The defendant insisted the contract provided she was to receive six per cent of defendant's net worth not to exceed $6,000.00 plus an Attorney's fee of $150.00 and court costs as a property settlement in the event of a divorce.

The court heard the matter on January 25, 1963, and granted complainant, Della Ann Crouch, an absolute divorce on the ground of cruel and inhuman treatment. The trial judge took the question of the validity of the antenuptial agreement and the matter of alimony under advisement. On February 14, 1963, an order of reference was ordered appointing a special commissioner and directing him to hear proof and report the net value of defendant's property, real and personal.

The special master reported defendant had a net worth [53 TENNAPP 597] of $163,446.75 over and above property owned by the parties by the entireties of the value of $13,640.00.

Exceptions to the report were filed by the defendant. The trial judge overruled the exceptions and held the antenuptial agreement was not binding on the court in fixing the amount of alimony and Attorney's fee.

Accordingly, a decree was entered in which the complainant was awarded certain items of household and kitchen furniture, the sum of $50,000.00 in cash or, in lieu thereof, real estate to the value of $50,000.00, a cemetery lot and a fee of $10,000.00 to her Attorneys The defendant elected to pay into court the sum of $61,000.00 to cover the alimony, Attorneys' fee and costs rather than have the real estate divided between the parties.

Defendant has appealed to this Court and assigned eleven assignments of error.

The first three assignments have for their basis there is no material evidence in the record to support the decree for an absolute divorce and, in fact, the evidence preponderates against the decree.

This Court tries a divorce case on appeal de novo. But there is a presumption of the correctness of the decree of the trial court unless we find the evidence preponderates against the finding of the court below. T.C.A. Sec. 27-303.

From a review of the record, we find the evidence on behalf of complainant is to the effect in March of 1962 complainant was scheduled to have an operation. Defendant told complainant he would see her through the operation but was going to divorce her thereafter. That about [53 TENNAPP 598] the same time he accused her and her doctor of getting rid of their baby in 1947 at which time she had a miscarriage. In 1948 complainant gave birth to a stillborn child. In December of 1962 defendant denied the paternity of that child to her.

On an occasion in 1961, while defendant and complainant were on their way to his mother's home, he accused her of going with other men. She denied the accusation. He called her a liar, pulled her hair and threatened to 'stomp' her.

About four years prior to her testimony, he accused her of meeting a man on the highway between Shelbyville and McMinnville. Defendant has refused to let her drive their car since that time. During these years he has cursed her for going to church because of her unfaithfulness to her marriage vows. Defendant would refuse to discuss their marriage problems. She became highly nervous from his treatment of her and was forced to take medication to sooth her nerves.

In January, 1962, she had an operation for gallstones. When she returned home from the hospital, he again accused her of destroying their baby in 1947. His accusation of her unfaithfulness continued until August 30, 1962, when she was forced to withdraw.

Henry Elbert Young, the Minister of her church, testified the defendant on several occasions, after the divorce bill was filed, told him complainant was interested in other men.

Bessie B. Holland, a cousin of defendant, stated defendant had tried to get her to say complainant had been with a man by the name of Griffith.

[53 TENNAPP 599] Carl Stanley, complainant's son-in-law, testified complainant had been without the use of a car for some time.

Defendant denied both the testimony of complainant and her witnesses.

Bobby Crouch, the son of the parties, testified he had never heard his father accuse complainant of going with other men. Nor had he heard him curse his mother.

Where, as in this case, the determination of the issues of fact depends largely upon the credibility of the two adversary parties and the case is tried upon oral testimony, the findings of the trial judge are entitled to great weight since he saw the witnesses face to face and heard them testify. This is true because he was in a much better position than we are to judge the value of their evidence. Clardy v. Clardy, 23 Tenn.App., 608, 136 S.W.2d 526; Roberts v. Ray, 45 Tenn.App., 280, 322 S.W.2d 435.

If the testimony of complainant is true, the trial judge did not err in granting her an absolute divorce on the ground of cruel and inhuman treatment. Garvey v. Garvey, 29 Tenn.App., 291, 203 S.W.2d 912; Meeks v. Meeks, 27 Tenn.App., 279, 179 S.W.2d 189.

From the foregoing resume of the evidence, and in the light of the foregoing rules which govern us, we are unable to say the evidence preponderates against the findings of the trial judge.

We accordingly, overrule these assignments.

Defendant's fifth and sixth assignments complain of the action of the trial court in overruling his exceptions to the report of the special master.

[53 TENNAPP 600] In considering these assignments, we are bound by the rule a concurrent finding by the master and the trial court is conclusive on appeal, unless the finding be on an issue not proper to be referred, or is based on an error of law, or on mixed law and fact, or is not supported by any material evidence. Evans v. Boggs, 35 Tenn.App., 354, 245 S.W.2d 641; Black v. Love and Amos Coal Company, 30 Tenn.App., 377, 206 S.W.2d 432.

These assignments present only the question of whether there is any material evidence to support the findings of the special master.

The first item complained of is the value placed on a 258 acre tract of land in Cannon County owned by the defendant. The master placed a value of $5,160.00 or $20.00 an acre on the property.

The record shows one witness testified the property was worth $7.50 an acre, another valued the land at $30.00, and a third valued the property from $20.00 to $25.00 an acre.

Thus, there is material evidence to support the finding of the master and we overrule defendant's fifth assignment.

The sixth assignment complains of the master's evaluation of the interest of defendant in the business of Crouch Builders Hardware, a partnership owned by defendant and his son; the finding of the master that the son was indebted to defendant in the sum of $22,859.06; the finding of the master the defendant had approximately $40,000.00 in cash; and the finding that an amount withdrawn from the Murfreesboro Savings & Loan Association[53 TENNAPP 601] of $30,765.74, which account was in the name of W. L. Crouch, Trustee for Bobby Lee Crouch, was in fact the property of defendant.

The record shows that on January 7, 1961, defendant sold a one-half interest in the Crouch Builders Hardware to his son for $40,000.00. The son executed a note to defendant for this amount. The agreement between the parties provided the son's share of the net profits of the business each year would be credited on the note. The note shows credits of $6,685.98 and $7,638.48 as the son's share of the net profits of the business for the years 1960 and 1961, respectively.

There is filed in the record the income tax returns for the business for the years 1961 and 1962, which show the net income of the business for those years to be $22,761.36 and $11,520.66, respectively.

By stipulation of the parties the assets of the business were shown to amount to the sum of $27,497.01. The liabilities of the business amounted to $10,602.31 evidenced by a note payable to the First National Bank of McMinnville.

It is evident the master found the defendant's interest in the business to be $40,000.00 from the sale of the one-half interest to his son for that amount. Although we think the fact the father sold the interest to his son for such an amount and the showing of the net profits of the subiness for the years 1961 and 1962 would be material proof to support the master's finding, yet we are of the opinion this amount should be reduced by one-half of the liability of the business which would reduce the master's finding on this item to $34,698.85.

[53 TENNAPP 602] As to the indebtedness of $22,859.60 of the son to defendant, the record shows this obligation to be a balance on the note in the sum of $40,000.00 executed by the son to the father for his interest in the father's business. The note was marked paid by the father on March 25, 1962. However, neither the father nor the son could give a satisfactory explanation of how the son paid this...